State ex rel. Hudson v. Webber

MANFORD, Judge. This is an original proceeding in prohibition. A preliminary writ issued. Briefing and argument were to the court en banc. The preliminary writ is made absolute. Summary judgment had been entered against relator. General execution secured partial satisfaction of the judgment. Proceedings in examination of relator as the judgment debtor were had before respon [692] dent. During this examination, nine questions were propounded to relator, in response to which relator refused to answer. In his refusal, relator invoked the privilege against self-incrimination under the Fifth Amendment to the United States Constitution and Mo.Const. Art. I, § 19. Although relator invokes the privilege under the Federal Constitution, reference to our state constitution suffices. Respondent, by order, compelled relator to answer and relator then sought to prohibit such order in this court. The nine questions were as follows and are listed for illustration only to show how such questions comport with questions found within the dispositive precedent on the issue. 1) “What sources of income do you have? MR. COLE: Objection COURT: Overruled A. I respectfully decline to answer under the privilege guaranteed by the Fifth Amendment, U.S. Constitution, Article I, Section 19 of the Missouri Constitution. COURT: Is there some claim of privilege against prosecution? MR. COLE: Yes, Your Honor. The privilege is claimed against self-incrimination . Your Honor, I would say to the Court that the income taxes Mr. Hudson may be liable for on any income conceivably could represent some trouble for him in the future. As far as I know, the business he was in before with the restaurant has a high cash flow and is susceptible to manipulation. In fact, Tom Basse testified earlier about the manipulation in the restaurant business, and with any sort of income he has now I would say the same applies. Could be trouble with income tax in the future.” 2) “Q. Mr. Hudson, do you receive any interest income at the present time?” (privilege invoked) 3) “Q. Mr. Hudson, do you receive any income from rents?” (privilege invoked) 4) “Q. Do you receive any income from dividends from any corporate stocks?” (privilege invoked) 5) “Q. Do you have any checking, accounts at the present time, Mr. Hudson?” (privilege invoked) 6) “Q. Do you own any real estate?” (privilege invoked) 7) “Q. Mr. Hudson, do you have any income from self-employment? A. Odd jobs. Q. What’s the nature of the work you do? A. Well, I don’t have any trade now. Q. Well, the odd jobs, what — ” (privilege invoked) 8) “Q. Mr. Hudson, do you own any automobiles or other motor vehicles?” (privilege invoked) 9) “Q. Mr. Hudson, do you have any interest in any estates that are presently being probated, either as a devi-see or legatee or heir?” (privilege invoked) It serves no purpose to restate the long established history of the privilege against self-incrimination. This privilege is available to a judgment debtor in proceedings pursuant to §§ 513.380-513.390, RSMo 1978. Such history may be found in the case of Cantor v. Saitz, 562 S.W.2d 774 (Mo.App.1978), and the reader can readily appreciate the virtual identical form and subject material of the questions in the instant case and those found in Cantor v. Saitz, supra. In Cantor v. Saitz, supra, the correct rule is to be found: A court cannot compel answers to questions in derogation of the privilege unless the court can say, as a matter of law, that it would be impossible for an answer to incriminate the individual. It is not required that any charge of criminal conduct be either prior to the examination or “pending” at the time of the examination, see State ex rel. Howard v. Allison, 431 S.W.2d 233 (Mo.App.1968). The privilege is available where an answer “may or may not criminate the witness,” see [693] United States v. Burr, 25 Fed.Cas.No. 14,-692e, pages 38, 40, 1 Burr’s Trial 244. The court is not unmindful that this privilege might be asserted arbitrarily. This problem was also addressed in Cantor v. Saitz, supra, wherein the court declared that the witness or the counsel for the witness could be required to describe “in general terms” a rational basis upon which the witness’s answer could conceivably incriminate him. Once a rational basis is foreseen by the court or pointed out by the witness, it would follow that the court would be precluded from saying, as a matter of law, that it would be impossible for the witness to incriminate himself. Such a rational basis in general terms can be found in the response to question no. 1 above. Just as the court found in Cantor v. Saitz, supra, a distinct possibility of several areas of criminality could arise in connection with the questions propounded. These areas range from fraud to perjury to tax liability. Questions no. 1 through no. 4 and question no. 7 attempt to discover facts related to relator’s income. Question no. 5 inquires about relator’s checking account. Questions no. 6 and no. 8 relate to ownership of real property and personal property. Question no. 9 relates to interest in estates presently being probated. Each of such questions has been found to require an answer which could very likely provide a link in a chain of testimony which would be necessary to convict an individual of a crime, see Cantor v. Saitz, supra. This court finds no distinction of merit between the questions in the instant case and those propounded in Cantor v. Saitz, supra, see also State ex rel. Howard v. Allison, supra; State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929 (Mo.App.1967); State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo.banc 1959); Ex parte Meyer, 18 S.W.2d 560 (Mo.App.1929), quashal denied State ex rel. Strodtman v. Haid, 325 Mo. 1137, 30 S.W.2d 466 (1930), and it cannot be said that the questions in the instant case “are by no means innocuous”. No court is desirous of frustrating the claim of right of judgment creditors, but when such claims are matched against basic constitutional rights, the resolution must always be in favor of those basic constitutional rights, and the judgment creditor must seek other means to secure redress. The writ of prohibition is made absolute to all nine questions referenced herein pursuant to Mo.Const. Art. I, § 19 and the authority cited herein as interpretive thereof. SHANGLER, PRITCHARD, SWOF-FORD and KENNEDY, JJ„ concur. WASSERSTROM, C. J., concurs in part and dissents in part in separate opinion in which TURNAGE, J., concurs.